In a drawn-out defence before the Judicial Services Commission this past weekend, judge Mogoeng Mogoeng merely added to the ammunition against him. Reporters who attended the interview described him as sensitive, irritated, angry and antagonistic.
These are hardly the attributes one seeks in a Chief Justice. As reporter Stephen Grootes wrote in these pages, we like our judges old, wise and thoughtful, not young, emotional and passionate.
Mogoeng failed to explain the shocking factors he found in mitigation of sentence in several of his judgements, which have been highlighted by critics.
The arguments opposing Mogoeng's appointment have been described as “a media witch-hunt”. Like the charges of racism that inevitably accompany criticism of a presidential nominee, there's no real merit to that headline.
The opposition came from a wide range of organisations, including the Cosatu labour federation and Section27, a public interest law centre representing, among others, the Sonke Gender Justice Network, The Equality Project, and the Treatment Action Campaign. There has even been a submission by foreign legal scholars. They are not the media.
(Contrary to the public claim by the SACP that Mogoeng has “found himself caught in the crossfire led by the opposition parties”, the Democratic Alliance has not taken a public position on the appointment, and has asked to be permitted to reserve comment until after the weekend's interview.)
As for the actual media, it is hardly a monolithic entity. Besides reporting the news of the widespread and apparently well-founded criticism of Mogoeng, there have been a number of editorials and columns on the subject, as one might expect. Some of the coverage was harshly critical, but some defended Mogoeng or reported on his own defence.
Despite such hasty and inaccurate generalisations about Mogoeng's critics, some of the points raised in his defence have merit.
For example, judges are indeed required to weigh both aggravating and mitigating circumstances when a lower court's ruling or sentence is brought before them on appeal. Some activists might not like the notion of mitigating circumstances in rape cases, but they surely exist. Cold examination of facts does not lend itself to soft-focus emotional niceties.
It is also true that second-guessing a judgement without the benefit of having been present in court – or, for that matter, without the benefit of formal legal training and experience – is a risky undertaking. Ignorance makes for rash opinions.
However, neither these reservations, nor anything said in Mogoeng's defence can mitigate the most shocking of his rulings, and his failure to explain them in his JSC interview.
Recounting how he ended up being an apartheid functionary in Bophuthatswana for a while, he could have dismissed it as a mere fact of history which he has in common with many South Africans of his age. Instead, he went further and made an appeal to emotion. He's a poor boy, from a poor family, and all that.
He must believe that emotive rhetoric will have the same influence on the public that such an appeal had on him, when he reduced the sentence of a man who raped a seven-year-old girl from life to the minimum prescribed by law: "the appellant is 31 years of age, he is unmarried, he is unemployed, he is suffering from chronic epilepsy, his highest qualification is standard seven and he is staying with his unemployed mother.”
Pass the tissues, would you?
This man was found guilty of raping a seven year old girl, and the judge gets all emotional about the poor fellow's modest background?
A judge might be required to take such considerations into account, but he is not required to conclude that these are automatically significant factors in mitigation of sentence. If this is Mogoeng's idea of justice, then he ought not to hold public office.
In his lengthy personal statement before the JSC, he failed to explain the relevance of “provocation” in a case involving a man who had tied his girlfriend to a car and dragged her across a gravel road. Mogoeng described the prison sentence as “too heavy, by any standards”. The reasons? Such violence was common in the region, she suffered only abrasions, and she had provoked him. He reduced the prison sentence to a fine of R2,000. In his interview, Mogoeng said he was unable to find documentation that might have shed light on the nature of the provocation.
Even if one stipulates that mitigating circumstances must be considered, since when is a claim of provocation an excuse for such barbaric domestic violence? And is our law really so flexible that it can take such crime lightly because it is common in some of the more violent cultural backwaters of our country? It was also not uncommon for white farmers to take a sjambok to black workers. Would this, or perhaps the provocation of a worker's drunkenness, mitigate the crime in Mogoeng's eyes?
South Africa has a new Constitution for a reason. Its citizens rejected the cruelty and patriarchism of the past. Mogoeng's inability to answer why he ruled the way he did does not inspire confidence that victims of domestic abuse can approach the courts to seek justice.
He said it was “insensitive” for a defendant to punch his eight-month-old pregnant wife in the stomach and rape her in front of a third person. If true, this leaves two options: the woman asked for a beating when she said “no”, or Mogoeng's definition of “insensitive” is cause for grave concern about his suitability as a judge and respect for the basic human rights of women.
Again, it wasn't just that he was required to weigh both aggravating and mitigating factors. Or even that he found the latter outweighed the former so much that of the minimum possible sentence, he could suspend half. It was the arguments and phrasing he used. He said, for example, that the complainant, when she arrived at the man's parental home, “must have come knowing” that sex was likely or certain. The notion that a woman, merely by her presence in a house, asks to be raped, is an astonishingly dangerous precedent to set.
Not that Mogoeng is all that cognizant of precedent, it seems. In another case, a woman, in the process of divorce, was throttled and pinned down before before her husband attempted to rape her. Mogoeng wrote this before suspending the attempted rapist's entire sentence:
“This is a man whose wife joined him in bed clad in panties and a nightdress. When life was still normal between them, they would ordinarily have made love. The appellant must, therefore, have been sexually aroused when his wife entered the blankets. The desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour. He, however, neither smacked, punched nor kicked her. Minimum force, so to speak, was resorted to in order to subdue the complainant's resistance.”
Such a ruling is monstrous.
Dikgang Moseneke, as chair of the JSC, noted that the precedent on which Mogoeng relied in this case was Apartheid-era law, dating to 1988. Since then, we've had a little matter of a liberation, a new Constitution, new laws about rape and minimum sentencing, and new precedent set by the Supreme Court of Appeals. In 2011, we do not hold it to be relevant what a woman wears, or what the relationship between the rapist and the victim is.
Mogoeng admitted in the interview that he was wrong, but denies that this demonstrates insensitivity to the rights of women. In the words of Pierre de Vos, a professor of constitutional law, “Moseneke follows up and points out that anyone alive to the new values embodied by the Constitution and the legislation could not have made the judgement Mogoeng did and that the judgment was therefore not jurisprudentially sound. Moseneke... seems to give Mogoeng a bit of a lecture on how to be a judge.”
In another case, the court held that being called homosexual was not defamatory, since there is nothing inherently objectionable about being homosexual. Mogoeng dissented. He did not bother to write up his reasons for doing so. As the Section27 submission points out, providing reasons for such decisions is repeatedly recommended in previous Constitutional Court rulings, and has since been included in the Code of Judicial Conduct for Judges.
Saying, as he did before the JSC, that he should have provided a written reason, and then complaining that he did not have the time to apply his mind, lays him wide open to accusations that his evangelical Christian beliefs may have influenced his judgement. It also makes a great case for establishing a Constitutional Appeals Court to correct lackadaisical work and kneejerk reactions by Constitutional Court judges.
To defend himself against the charges of homophobia, he noted that he once imposed a harsher sentence on a man who raped another man. Considering his leniency towards rapists of female victims, this does not exonerate him. On the contrary. This shows that he considers rape of men to be worse than rape of women. His defence is an admission of homophobia.
Besides what this statement says about his character, that it did not occur to the learned judge that this statement could be turned against him does not speak well of the sharpness of his legal mind.
But worse is yet to come.
Of a rapist who attacked a 14-year-old girl, Mogoeng said: “She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home...”
And, because the girl kept quiet about the rape: “One can safely assume that [the accused] must have been mindful of [the victim's] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30."
This language is truly shocking. “Tender”? A man who rapes an underage girl is being “tender”?
If you're a child rapist, all you have to do is not leave your victim bleeding, and Mogoeng will go easy on you? Manipulate her into silence, and he'll consider your precautions to be a mitigating factor? Hope that her trauma is sufficient that she is unable to cry, and Mogoeng will think it wasn't so bad?
This view is vile and unbecoming of any decent human being.
There is no defence against a statement like this – not even that English isn't your first language. Another choice of words, such as “gentle” or “concerned”, would not have materially changed the meaning, which undermines the vicious nature of the crime by suggesting that the rapist was caring and considerate.
That a lack of injury due to overt physical violence is to be considered a mitigating factor in rape is a point which is far from clear to me. It would make sense to me to prosecute violent rape as two separate charges of rape and assault. But let us take as given that the extent of injury is indeed a valid consideration in mitigation of sentence.
If so, then surely the judge can simply note the extent of the injuries, rather than diminishing the emotional trauma to the victim or imputing benevolent motives to the perpetrator? And surely, the fact that the victim was a defenseless child, living in sufficient poverty that a pittance was enough to bribe her to keep quiet, would be an aggravating circumstance that nullifies any possible mitigation?
Forget any other criteria. His experience or qualifications are weak objections that appear to have been adequately answered. Despite his amusing reference to Barack Obama's age, given the parlous state of the latter's presidency, Mogoeng's youth and inexperience are not sufficient grounds to deny him the position.
Such issues are anyway trivial compared to the horror of listening to a sitting judge defend child rape and domestic violence. The wording of those judgements alone should disqualify him, no matter how many other boxes his nomination ticks. The Constitutional Court isn't a lottery. This is about people's lives and basic human rights. Rape and domestic violence are hard enough to prosecute without packing the court with judges who'll be sympathetic to the perpetrators, and in some cases send them right back home to take their revenge.
Ultimately, President Jacob Zuma has to answer these charges. He nominated a man who appears to have views that are morally reprehensible and Constitutionally unsound for the position of Chief Justice. Perhaps Zuma failed to recognise signs of misogyny in another, but at least he ought to hear the public condemnation.
Mogoeng made all the right statements about the role of the media in a democracy, and the relationship between the judiciary and the other two branches of government. However, given how his platitudes about gender rights conflict with the wording of his real-world rulings, one can't help but question is sincerity. Maybe Zuma's hope is that Mogoeng, having now been given reason to share a dislike for the media, also shares the view of ANC NEC member and deputy minister Ngoaka Ramatlhodi: that the judiciary is too independent, and should be less harsh on crimes by vulnerable members of society, such as rapists, thieves and politicians.
On this, we can only speculate. However, on the content of his judgements, we can form an opinion. In a democratic society, the people ought to be able to respect and trust the court. With Mogoeng at its head, the court will enjoy neither trust, nor respect.
As Cosatu rightly points out in its submission: “It is disturbing that even if not successful, Justice Mogoeng will remain on the bench as an ordinary Constitutional Court judge.”
If the judiciary entrenches the image of an unsympathetic patriarchy, fewer crimes – especially against women, children, and sexual minorities – will be reported and punished. Except, perhaps, by lynch mobs, kangaroo courts and vigilantes.
This, ironically, would jigsaw neatly with Mogoeng's stated views about access to traditional justice at local level. But how this advances the hopeful vision of human rights and liberty of which our Constitution is such a shining symbol, is beyond me.
South Africa deserves better. DM
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